United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR MARK JONES Solicitor Messrs Underwoods Solicitors 83/85 Marlowes Hemel Hempstead Hertfordshire HP1 1LF
For the Respondent	THE RESPONDENT IS NEITHER PRESENT NOR REPRESENTED


 


JUDGE P CLARK

1. By an Originating Application presented to the Employment Tribunal on25 May 2000 the Applicant, Mr Lill claimed that he was entitled to a redundancy payment, 12 weeks pay in lieu of notice and 1 week's holiday pay, following termination of his employment as a mechanic at the Seacroft Garage, Skegness. He gave as his dates of employment 26 March 1977 to 4 February 2000. He named as his employer Mr Stuart Landon.
2. An unsigned Notice of Appearance entered on 5 July 2000 merely recorded that the business had gone into liquidation and named the liquidators, whom it was said were responsible for any redundancy payment, as Pannell Kerr Foster of Leicester. Mr Landon wrote a letter to the Employment Tribunal confirming that information dated 12 September 2000, alleging that the Applicant had been employed by a limited Company.
3. The case came on for hearing before the Regional Chairman, Mr J K MacMillan, sitting alone at Boston on 13 October 2000. On that occasion the Applicant appeared in person. There was no appearance by or on behalf of the Respondent.
4. The Chairman considered the question of the identity of the employer and concluded that it was, as the Applicant contended, Mr Stuart Landon and not his Company Stuart Landon Ltd.
5. He further went on to consider the substantive claims and found, in a decision with Extended Reasons promulgated on 25 October 2000, that because the Applicant was dismissed on 4 February 2000 without the minimum statutory notice of 12 weeks the redundancy payment fell to be calculated as though the date of dismissal was not 4 February but 11 weeks later. He calculated the redundancy payment at £4,483.20.
6. Finally he awarded 11 weeks pay representing damages for breach of contract, that is wrongful dismissal and one week's holiday pay by way of unlawful deduction from wages.
7. The decision having been sent to the parties, solicitors acting for Mr Landon, not Mr Jones' firm, wrote to the Employment Tribunal on 8 November 2000 requesting a review on the grounds that the Respondent did not attend the hearing before Mr McMillan because he had been advised not to do so by the accountants. That application was summarily dismissed by the Chairman under rule 11(5) of the then 1993 Employment Tribunal Rules of Procedure by a review decision with reasons dated 28 November 2000.
8. Those solicitors then entered a Notice of Appeal on the Respondent's behalf dated 1 December 2000. The grounds of appeal concentrated on the Respondent's non-attendance before the Employment Tribunal and the identity of the Applicant's employer, that is the limited company and not Mr Landon personally.
9. The appeal came on first for Preliminary Hearing before a division presided over by Mr Commissioner Howell QC on 18 June 2001. Mr Landon then represented himself. The hearing was adjourned and was later restored before Judge Wilkie QC and members on 25 February 2002. On that occasion all original grounds of appeal were dismissed; however the solicitor then appearing for Mr Landon under the ELAAS pro bono Scheme, Mr Underwood, raised a new point which, as Judge Wilkie observed at paragraph 12 of his judgment given on that day, had not been taken in the Notice of Appearance below, nor in the Notice of Appeal nor, we would add, in the Review Application. It was that on the face of the Originating Application the claims for pay in lieu of notice and holiday pay were out of time. The ordinary time limit for those claims was 3 months, subject to the reasonable practicability escape clause, whereas here the effective date of termination appear to be 4 February and the Originating Application was not presented until 25 May 2000.
10. The Employment Appeal Tribunal opined that although raised very much at the last moment this was a jurisdictional matter and it was arguable that the Employment Tribunal ought to have been astute to the point and taken note of its own motion and, if it had, the claims might not have succeeded.
11. On that point only the matter was permitted to proceed to a full hearing, permission being given to Mr Landon to amend his Notice of Appeal to add this new point.
12. Amended grounds of appeal dated 4 March 2002 were duly lodged. Mr Lill then instructed solicitors who entered what is described as the Respondent's notice (Answer) settled by Counsel. That Notice contended that a point relating to jurisdiction which was not raised before the Employment Tribunal should only be permitted to be argued on appeal in exceptional circumstances, citing the Court of Appeal's decision in Glennie v Independent Magazines (UK) Ltd [1999] IRLR 719. It was pointed out that a further factual enquiry would be required as to whether it was not reasonably practicable to present the relevant complaints (excluding the claim for a redundancy payment, which was in time).
13. The appeal having been listed for full hearing today, Mr Landon's solicitors, by letter faxed on 25 September 2002 submitted a draft consent order signed by solicitors for both parties. The draft order reads as follows:

"BY CONSENT:

IT IS HEREBY ORDERED that:

1. The Appellant and the Respondent agree that this appeal should be allowed as the employment tribunal erred in law.

2. The decision of the employment tribunal dated 24 October 2000 that the Appellant pay the Respondent's claim of breach of contract in the sum of £1,738.00 and compensation for unlawful deduction from wages in the sum of £187.80 be remitted to a freshly constituted tribunal, to determine whether these claims were presented within three months of the effective date of termination."

We note that no reference is there made to the reasonable practicability escape clause.

14. By his covering letter Mr Jones, who appears on behalf of Mr Landon today, asked that the matter be brought to the attention of "a chairman" (presumably a Judge) for directions as to whether the matter could be determined without the need for the parties attendance and whether if attendance was necessary, skeleton arguments were required.
15. That letter was referred to the Registrar who directed that the matter remain in the list. Reference was there made to paragraph 13(4) of the Employment Appeal Tribunal Practice Direction and in particular this passage:

"If the parties reach an agreement that the appeal should be allowed by consent … it is usually necessary for the matter to be heard by the EAT to determine whether there is a good reason for making the order which both parties agree should be made. In order to save costs, it may be appropriate for the Appellant or a representative only to attend to argue the case for allowing the appeal and making the order that the parties wish the EAT to make."

16. That practice is based on the judgment given by Mummery P in J Sainsbury Plc v Moger [1994] ICR 800, 806H - 807D.
17. The enquiry about skeleton arguments was not then specifically addressed. We should take this opportunity to make it crystal clear that the ordinary rule as to skeleton arguments (see Practice Direction paragraph 8) applies to hearings of appeals where the parties consent to an appeal being allowed unless the Employment Appeal Tribunal otherwise directs. Indeed, it is particularly important for the Employment Appeal Tribunal to see, in advance of the hearing under Practice Direction paragraph 13(4), why it is said that the Employment Tribunal below erred in law. We repeat, appeals will not be allowed by consent, particularly where it is proposed that the case be remitted to the Employment Tribunal for rehearing, unless there is good reason for making the order.
18. After pre-reading the papers I directed that a skeleton argument be lodged and Mr Jones has done so at short notice.
19. It is against that background that we turn to the proposed consent order.
20. Mr Jones alone appears before us today. That is wholly consistent with the guidance given in paragraph 13(4) of the Practice Direction. It follows that he has no client with him from whom he can take instructions and there is no appearance by or on behalf of the Respondent to this appeal, Mr Lill, to explain to us why consent has been given to the order which we have earlier set out.
21. This hearing is not a rubber stamping exercise. We are asked by the parties to set aside a reasoned decision of an Employment Tribunal and further to remit the case back to a different Tribunal for further determination. We are asked to do so, on the basis of a point which was not raised in the Notice of Appearance below, not raised before the Employment Tribunal, nor even raised in the original Grounds of Appeal.
22. In these circumstances we revert to the point specifically taken in the Respondent's answer to this appeal. Looking at the cases starting with Kumchyk v Derby City Council [1978] ICR 1116 and going through to the most recent decision of the Court of Appeal in Glennie v Independent Magazines (UK) Ltd we provisionally take the view that although in the case of House v Emerson Electric Industrial Controls [1980] ICR 795 it appeared to be the view of the Employment Appeal Tribunal, Talbot J presiding that jurisdictional points could always be taken for the first time on appeal, that view has been modified first in the judgment of Knox J in Russell v Eldon Freight Terminal Ltd [1989] ICR 629 and more recently in Glennie itself. Even if the point is a jurisdictional point properly so called, where further findings of fact are necessary in order to determine the matter the ordinary rule, that is that the new point will not be permitted to be taken on appeal save in exceptional circumstances, applies.
23. In these circumstances we are not prepared to allow this appeal by consent today. That places Mr Jones in an understandable difficulty. He came here this morning relying on the consent order for endorsement by the Employment Appeal Tribunal. Without that endorsement and without the capacity to take detailed instructions from his client and without an opponent being here to support the appeal, he is driven to ask for an adjournment of this hearing.
24. We, in those circumstances grant that application. Consequently this appeal is adjourned but with a direction that within 14 days of today the Appellant through his solicitors should indicate to the Employment Appeal Tribunal in writing whether or not he wishes to pursue this appeal. If so, then it will be re-listed for full argument before a different division with a time estimate of half a day.